STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF HOTELS ) AND RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0571

) SELMA, FRUMAN ET AL., d/b/a ) GREENVILLE APARTMENTS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officers Donald R. Alexander on April 23, 1986 in Miami, Florida.

APPEARANCES

For Petitioner: Lynne A. Quimby Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondents: No appearance.

BACKGROUND

By Notice to Show Cause issued on November 1, 1985, petitioner, Department of Business Regulation, Division of Hotels and Restaurants has alleged that respondent, Selma Fruman et al. d/b/a Greenville Apartments was guilty of violating Sections 509.032, 509.211 and 509.221, and various rules promulgated thereunder by having failed to comply with certain health and safety requirements for nontransient public lodgings.

On January 29, 1986, a representative of respondent requested a formal hearing to contest the allegations pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred by petitioner to the Division of Administrative Hearings on February 20, 1986, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated March 31, 1986, the matter was scheduled for final hearing on April 23, 1986 in Miami, Florida. At final hearing petitioner presented the testimony of Norman Hayes and Gerald L. Newman, and offered petitioner's exhibits A-E. All were received in evidence. Respondents did not appear.

There is no transcript of hearing. Petitioner waived its right to file proposed findings of fact and conclusions of law.

The issue herein is whether respondents are guilty of the allegations in the Notice to Show Cause.

Based upon all of the evidence the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto respondents, Selma Fruman and others, were the owners of a 14-unit apartment complex known as the Greenville Apartments located at 1701 North Treasure Drive North Bay Village Florida. Respondents hold license number 23-8285 issued by petitioner, Department of Business Regulations Division of Hotels and Restaurants (Division), and are subject to that agency's regulatory jurisdiction.

   
   

2. On or about September 2D 1985, a Division environmental health specialist conducted a routine inspection of respondents' facility to determine if health and safety standards were being maintained. All such facilities must be inspected at least twice during each fiscal year. The inspection was made in the presence of respondents' representatives. The specialist found the following items to be in noncompliance with Division rules:

   
   

   1. fire extinguishers were not recharged as required by Rule 7C-1.04(1), Florida Adminis- trative Code,

      
      

   2. combustible and flammable materials were stored in the electric meter room in viola- tion of Rule 7C-1.03(2), Florida Administra- tive Code,

      
      

   3. the building had flaking and peeling paint in contravention of Rule 7C-1.03(1),

      Florida Administrative Code, and

      
      

   4. trash, debris and junk were lying in the rear of the property in violation of Rule 7C- 1.03(5) and (7), Florida Administrative Code.

      
      

      Through testimony at hearing it was established that the deviations from agency rules constituted a threat to the tenants' healthy safety and welfare.

      
      

3. A copy of the report listing the above violations was sent to respondents by certified mail. The report warned that all violations must be corrected within ten days of receipt of the notice. The notice included the name and telephone number of the specialist who conducted the inspection.

   
   

4. On October 23, 1985, the Division specialist returned to respondents' facility to ascertain if the deficiencies had been corrected. The specialist found none of the four items had been corrected. A notice to show cause was

   then issued by the Division on November 1, 1985. However, respondents apparently requested an informal conference to discuss the violations and one was scheduled on a later date. After missing the conference, the manager of respondents' facility (and brother of one of the owners) wrote a letter on December 20, 1985 requesting a second conference and advising that "the four items mentioned to be corrected Items a, b and c, have been done and the building has been scheduled for painting the second week of January, 1986."

   
   

5. On January 24, 1986, the specialist made a return visit to the facility and found items a and b had been corrected while the violations in items b and c were unrepaired. At an informal conference held on January 29, 1986, respondents disputed the findings of the Division and requested a formal hearing. That prompted the instant proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

7. Subsection 509.032, Florida Statutes (1985), requires the Division to inspect all nontransient public lodging establishments at least twice annually "for the purpose of safeguarding the public health, safety, and welfare." Subsection 509.221(2), Florida Statutes (1985), requires that "each public lodging requirement . . . shall be properly plumbed lighted, heated, cooled, and ventilated and shall be operated with strict regard to the healthy comfort and safety of the guests." Finally, Subsection 509.211(3), Florida Statutes (1985), requires the Division to "enforce any rule adopted by the State Fire Marshall which relates to public lodging establishments."

   
   

8. The evidence clearly and convincingly establishes that respondents' facility was in violation of the following rules on September 20, 1985:

   
   

   1. fire extinguishers were not recharged (Rule 7C-1.04(1), FAC);

      
      

   2. combustible and flammable materials stored in electric meter room (Rule 7C- 1.03(2), FAC);

      
      

   3. flaking and peeling paint on building (Rule 7C-1.03(1), FAC); and

      
      

   4. trashy debris and junk lying in rear of property (Rule 7C-1.03(5) and (7), FAC).

      
      

      These violations were not corrected at the time the call back inspection was made on October 23, 1985, despite written warning having been given to respondents.

      
      

9. Subsection 59.261(2), Florida Statutes (1985), authorizes the imposition of a $500 civil penalty for each violation of Division rules. Agency counsel has recommended that the maximum penalty be imposed. There being uncontroverted evidence that the above violations endangered the health safety and welfare of the residents of said facility a $2,000 penalty is appropriate, to be paid within thirty days after entry of the final order in this proceeding.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that respondents be found guilty as charged in the notice to show cause, and that a $2,000 civil penalty be imposed to be paid within thirty days from date of the final order entered in this proceeding.

DONE and ORDERED this 15th day of May, 1986, in Tallahassee Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986.

COPIES FURNISHED:

Lynne A. Guimby, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301

Mr. Morris Liebman 1701 N. Treasure Drive

North Bay Village, Florida 33141

Mr. R. Hugh Snow, Director Division of Hotels & Restaurants Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301

Docket for Case No: 86-000571

Orders for Case No: 86-000571